Under the Radarhttp://www.politico.com/blogs/under-the-radar
Josh Gerstein on the Courts, Transparency, & Moreen-us2016 POLITICOSat, 10 Dec 2016 02:58:56 GMTWhite House seems to rule out last-minute Obama move to empty Guantanamohttp://www.politico.com/blogs/under-the-radar/2016/12/guantanamo-bay-closed-obama-232434
Some liberal groups have urged Obama to keep his vow making a unilateral move to transfer the remaining prisoners to the U.S. in the coming weeks.<p>President Barack Obama's top counterterrorism adviser appeared to rule out Friday any dramatic action by President Barack Obama to shut down the prison at Guantanamo Bay before he leaves office, essentially acknowledging that his promise to close the detention facility on his watch will not be fulfilled.</p><p>Some liberal groups have urged Obama to keep his vow making a unilateral move to transfer the remaining prisoners to the U.S. in the coming weeks. Closure advocates, including two lawyers who formerly worked on the issue for Obama, <a href="https://www.washingtonpost.com/opinions/the-president-doesnt-need-congresss-permission-to-close-guantanamo/2015/11/06/4cc9d2ac-83f5-11e5-a7ca-6ab6ec20f839_story.html?utm_term=.50d57b22b7a1" target="_blank">claim he has executive authority</a> under the Constitution to ignore a congressionally-imposed ban on bringing Gitmo inmates to U.S. soil.</p><p>Congressional Republicans have also <a href="http://www.politico.com/story/2016/11/tom-cotton-obama-guantanamo-bay-231476" target="_blank">expressed concerns</a> Obama might take such an action in his closing days in office.</p><p>However, Assistant to the President for Counterterrorism and Homeland Security Lisa Monaco signaled Friday that Obama has no plans to buck those restrictions, even though he strongly disagrees with them.</p><p>&quot;At the end of the day, the domestic transfer restriction remains in place, so until Congress lifts that we’re not able to bring detainees here even to serve a life sentence, even to undergo prosecution to render a life sentence, so those restrictions remain in place,&quot; Monaco told reporters at a discussion arranged by the Christian Science Monitor. &quot;There will be some number that remain, an absent an ability and a lifting of the Congressional restrictions to bring them to the United States, they will remain in Guantanamo.&quot;</p><p>Obama is expected to sign a defense authorization bill that cleared Congress Thursday and contains language maintaining the ban on transfers to the U.S., as well as limits on transfers of prisoners abroad.</p><p>However, Monaco said the Obama administration won't let up on efforts to shrink the prisoner population at Gitmo, now down to 59 from 240 when Obama took office.</p><p>&quot;We’re going to continue to pursue those transfers, just as many as we can before Jan. 20th,&quot; she said.</p><p>Monaco also faulted Congress for taking no action on a closure plan Obama submitted to the Hill in February at lawmakers' request. &quot;There was no receptivity, shall we say, to that plan that was put up nearly a year ago,&quot; she observed.</p><p>In other war-on-terror news, Monaco passed up a chance to say whether Obama is considering a request from Sens. Dianne Feinstein (D-Calif.), Ron Wyden (D-Ore.) and others to set in motion the declassification of an unabridged version of a Senate Intelligence Committee report into harsh interrogation techniques used by the CIA under President George W. Bush—a nearly 6,000-page tome many have dubbed the &quot;torture report.&quot;</p><p>&quot;I don't have any new news to make on this score,&quot; Monaco said when asked about the calls to either declassify the full report or deem it an executive branch record so it could be subject to Freedom of Information Act requests. </p><p>Monaco noted that Obama backed declassification of the executive summary of that report and she emphasized the prolonged nature of that declassification review, but she did not say whether Obama would support release of the broader document.</p><p>&quot;That was a lengthy process that the president very much supported, and thought it was important we got done and thought it was important to do,&quot; she said.</p><br>Fri, 09 Dec 2016 19:34:39 GMTjgerstein@politico.com (Josh Gerstein)http://www.politico.com/blogs/under-the-radar/2016/12/guantanamo-bay-closed-obama-232434Bush-era FOIA and privacy official joins Trump transitionhttp://www.politico.com/blogs/under-the-radar/2016/12/hugo-teufel-trump-transition-homeland-security-foia-privacy-232332
Hugo Teufel, who served as DHS’s chief privacy officer from 2006 to 2009, was the second person to hold the top privacy job at Homeland Security.<p>The former top privacy and Freedom of Information Act official at the Department of Homeland Security under President George W. Bush has joined the Trump transition's landing team at his former agency.</p> <p> Hugo Teufel, who served as DHS’s chief privacy officer from 2006 to 2009, is an attorney and currently senior global privacy counsel at Raytheon. </p> <p> Teufel, who was the second person to hold the top privacy job at Homeland Security, worked on cybersecurity issues at the then-relatively new agency as well as implementing data-sharing agreements between the U.S and the European Union. </p> <p> At a time when experts in all fields are trying to read the tea leaves about Trump's plans, the addition of a privacy law expert to the transition team is notable. However, most transition landing team members are not expected to join the administration, at least not at the outset, so the impact of these players may be mainly to impart expertise to those whom Trump does appoint to political posts at various agencies.</p> <p> Teufel is credited with building out the infrastructure and processes of the privacy office at DHS. Though many privacy advocates did not agree with decisions made during his tenure, he was viewed as ensuring that the broader community had a chance to raise concerns about the privacy impact of DHS's far-flung programs.</p> <p> &quot;He is very experienced and knowledgeable,&quot; said Anne Weismann of Campaign for Accountability.</p> <p>&quot;This is good news,&quot; added former Obama White House privacy adviser Tim Edgar. &quot;Hugo is a great public servant and his commitment to privacy and civil liberties is deep and sincere. This is always important for an agency like DHS, but is especially so given Trump's many alarming statements which are at odds with basic constitutional values, especially as they concern immigrants.&quot;</p> <p> A former DHS colleague of Teufel, Paul Rosenzweig, called him a good resource as Trump and his aides try to get up to speed on the challenges they face.</p><p> “He is always a lawyer’s lawyer, and he’s a great addition to the team,&quot; Rosenzweig said.</p><br>Wed, 07 Dec 2016 21:10:00 GMTjgerstein@politico.com (Josh Gerstein)http://www.politico.com/blogs/under-the-radar/2016/12/hugo-teufel-trump-transition-homeland-security-foia-privacy-232332Dueling court orders issued in Jill Stein Michigan recounthttp://www.politico.com/blogs/under-the-radar/2016/12/michigan-recount-appeal-232284
&quot;The record is devoid of any showing that the recount will not be timely completed,&quot; the court order said.<p>A Michigan court and a federal court of appeals on Tuesday issued dueling orders on Green Party presidential candidate Jill Stein's recount push in the state. </p><p>The dueling ruling resulted in Michigan Attorney General Bill Schuette <a href="http://www.politico.com/f/?id=00000158-d72d-d386-abde-dfef7c430001" target="_blank">taking</a> the recount case back to U.S. District Court Judge Mark Goldsmith, who on Monday issued an order that started the recount on that day at noon. </p><p>On Tuesday evening the Michigan Court of Appeals directed the state's Board of Canvassers to deny a recount petition by Stein. Meanwhile, in <a href="http://www.politico.com/f/?id=00000158-d695-dd9c-a15e-f79785590001" target="_blank">an order issued Tuesday evening</a>, the 6th Circuit panel split, 2-1, along partisan lines in declining to temporarily lift the <a href="http://www.politico.com/blogs/under-the-radar/2016/12/michigan-recount-ordered-judge-232182" target="_blank">order</a> that required the recount to begin by noon Monday in order to meet a target next week for states to name Electoral College electors. The Michigan Republican Party and Michigan Attorney General Bill Schuette had both asked the appeals court to step in.</p><p>&quot;If the recount could not be completed by the federal deadline, the right to a recount provided under Michigan law would have been effectively worthless. Facing the potential that Plaintiffs’ state recount right may have been deprived entirely by the waiting period law, we cannot say that the district court abused its discretion in determining that Plaintiffs would suffer irreparable harm without a TRO,&quot; said the court's order, joined by Judges Eric Clay and Bernice Donald.</p><br><p>&quot;This is a severe burden, and requires us to closely scrutinize the justifications put forward for the waiting period. As the district court correctly recognized, the justification put forward by Defendants—that the waiting period allows for judicial review before the state spends resources on a recount—is simply not compelling enough to justify de facto nullifying Plaintiffs’ right to invoke the recount procedures afforded them under Michigan law,&quot; the court's majority said.</p><p>As a result both Stein's campaign and the Schuette's office released statements hailing one of the rulings. </p><p>&quot;Today, Trump and his GOP allies in Michigan tried everything in the book to stop the recount, and they failed. This recount is continuing in spite of their efforts to suppress the vote,&quot; Stein lawyer Matthew Brinckerhoff said in a statement. &quot;We applaud this decision by the Sixth Circuit, and look forward to continuing to fight for the rights of Michiganders to ensure their votes are recounted in a timely and thorough manner.&quot;</p><p>Schuette's statement, meanwhile, praised the Michigan Court of appeals ruling. </p><br><p>&quot;I’m grateful, and I know Michigan taxpayers agree, that the Michigan Court of Appeals has adhered to the rule of law, and clarity in our Michigan statute in agreeing that Jill Stein is not an aggrieved candidate and the recount must stop,&quot; Schuette said in his response. </p><p>The Michigan GOP has already filed for the case to be taken up by the full 15-judge bench of the 6th Circuit. </p><br>Wed, 07 Dec 2016 02:08:58 GMTdstrauss@politico.com (Daniel Strauss)http://www.politico.com/blogs/under-the-radar/2016/12/michigan-recount-appeal-232284Judicial Watch asks judge to release videos in Clinton email casehttp://www.politico.com/blogs/under-the-radar/2016/12/clinton-email-depositions-release-judicial-watch-232213
The group says the action will &quot;provide the public with a more complete picture of the discovery taken in this case.&quot;<p>A conservative group that played a key role in legal battles over access to Hillary Clinton's emails is asking a federal judge to release videos of depositions top Clinton aides and other State Department officials gave in connection with the litigation over her use of a private email server as secretary of state.</p><p>Judicial Watch filed <a href="http://www.politico.com/f/?id=00000158-d0b2-d30d-a57d-d0bbc2d30002" target="_blank">a motion</a> Monday with U.S. District Court Judge Emmet Sullivan, asking him to unseal the testimony in light of the fact that the presidential election is over and the arguments against release seemed to be based on the videos becoming fodder in the White House race. Transcripts of the testimony were released soon after it was given, but the recordings have never been published.</p><p>&quot;The sole reason for sealing the recordings in the first place was to avoid their misuse during the 2016 campaign season. Now that the election is over that reason no longer exists,&quot; Judicial Watch attorney Michael Bekesha wrote. &quot;The release of the recordings will not only allow the public to better understand Secretary Clinton’s email practices, it will also provide the public with a more complete picture of the discovery taken in this case.&quot;</p><p>At issue are depositions given by former Clinton Chief of Staff Cheryl Mills, former Deputy Chief of Staff Huma Abedin, former State information technology manager John Bentel, and computer technician Bryan Pagliano, who worked for State and Clinton personally. Lawyers for those four and for the State Department have indicated they oppose release of the videos, the court filing said.</p><p>Sullivan ordered the videos sealed last May, finding &quot;good cause&quot; to keep them under wraps, but Judicial Watch says those grounds are no longer valid.</p><p>&quot;That good cause – the possibility that the recordings could be exploited for political gain during the contentious campaign season – is now moot. The reason for the protective order no longer exists,&quot; Bekesha wrote.</p><p>The Judicial Watch motion points to continuing press coverage of the Clinton-related email litigation (including <a href="http://www.politico.com/blogs/under-the-radar/2016/11/hillary-clinton-emails-231732" target="_blank">this POLITICO post</a>) and notes that <a href="http://www.politico.com/story/2016/07/hillary-clinton-deposition-video-media-225562" target="_blank">media organizations asked last July</a> that Sullivan to reconsider his motion and release the videos. The judge has not acted on that request.</p><p>In addition to the videos of the four former Clinton aides, recordings of testimony from four current State officials are involved in the dispute: Deputy Secretary of State for Management Patrick Kennedy, two veteran diplomats who worked in Clinton's office Lewis Lukens and Stephen Mull, as well as a current administrative official in Secretary of State John Kerry's office, Karin Lang.</p><p>No videos of Clinton are involved in the dispute. She was permitted to answer written questions in lieu of an in-person deposition.</p><br>Mon, 05 Dec 2016 21:51:46 GMTjgerstein@politico.com (Josh Gerstein)http://www.politico.com/blogs/under-the-radar/2016/12/clinton-email-depositions-release-judicial-watch-232213Supreme Court struggles with pair of race and redistricting caseshttp://www.politico.com/blogs/under-the-radar/2016/12/supreme-court-redistricting-virginia-north-carolina-232206
If Justice Anthony Kennedy, a Republican appointee, votes with the court&#39;s Democratic appointees, that would form a five-justice majority.<p>The Supreme Court heard cases from Virginia and North Carolina Monday questioning how the legal system should respond to claims that states essentially packed too many minority voters into legislative districts.</p><p>While the shorthanded Supreme Court raises the possibility of a deadlock in the cases and could lead to them being reheard after a new justice appointed by President-elect Donald Trump joins the court, two of the sitting justices expressed views that could be key to the outcome of the decisions: Anthony Kennedy and Stephen Breyer.</p><p>The Virginia case involves the state's use of a floor of 55 percent voting-age African Americans to draw so-called majority-minority state legislative districts in 2011. The North Carolina dispute stems from a pair of majority-minority congressional districts drawn after the 2010 census and later rejected by a federal court. Both cases rest on whether minority communities' effect on local election results was unfairly diluted because their voters were packed into a handful of districts.</p><p>The district court judge in the Virginia case said that the 55 percent floor and any use of race in the redistricting process was irrelevant as a legal matter as long as the districts were logically drawn based on traditional factors, such as geography. However, Kennedy said he said the state's admission that it was using race as a factor should subject the action to close legal review, even if the boundaries are apparently sensible based on accepted factors.</p><p>&quot;The district court, I think, said because the districts are conventional in all other respects, strict scrutiny doesn't apply. I have a problem with that,&quot; Kennedy said.</p><p>If Kennedy, a Republican appointee, votes with the court's Democratic appointees, that would form a five-justice majority. But in both cases Breyer was something of a wild card.</p><p>Breyer seemed eager to craft a manageable standard that would be relatively easy for courts to apply — and one that would reduce the overall number of challenges to future redistricting carried out by state legislators.</p><br><p>Breyer appeared to agree with Kennedy that the lower court was wrong about reasonable contours being enough to put the race issue to the side, but Breyer held open the possibility that the Virginia districts might be acceptable even if the judge had that test wrong.</p><p>&quot;This is such a complicated area that it's the easiest thing in the world to go through a district court lengthy opinion and to find a sentence that's not exactly right,&quot; Breyer told Marc Elias, a Democratic election lawyer representing those challenging the maps in both North Carolina and Virginia. &quot;if we're going to ... ever have districting done back in the legislatures, rather than in the courts, you've got to prove your case that, not only did what he say was wrong, but it mattered, with pretty strong evidence.&quot;</p><p>Elias insisted that the judge's conclusion that race wasn't relevant if districts were reasonably drawn on other grounds pervaded his ruling.</p><p>&quot;This was not a stray sentence,&quot; Elias said. &quot;In every one of those hundred-plus pages, this is the test he applies, over and over and over again.&quot;</p><p>The high court's most vocal critic of the use of a 55 percent floor was liberal Justice Elena Kagan.</p><p>&quot;The idea that you would look at 12 districts and say that every single one of them ought to meet the same BVAP [black voting-age population] standard without looking at the characteristics of those districts, who's in them, how they vote, I mean, it just — it sort of defies belief you could pick a number and say that applies with respect to every majority-minority district,&quot; she said. &quot;When a State says across the board we're going to do something that just on its face you know is not required by the Voting Rights Act, that's a problem.&quot;</p><p>Former George W. Bush administration solicitor general Paul Clement, arguing in the states' defense in both cases, said 55 percent was a pretty fair number for officials to pick to make sure that minority voters had a decent opportunity to select candidates of their choice, while not corralling far more African American voters than necessary.</p><p>&quot;I don't think in this context a BVAP floor is inherently sinister,&quot; Clement said, adding that in many districts civil rights groups are insisting on a minority population of over 50 percent in such districts. &quot;In the universe of possible numbers, 55 percent's about the best number you could come up with, because — I mean, my friends on the other side agree these all need to be majority-minority districts. So if the whole debate is it's got to be somewhere north of 50 percent, I mean, 55 percent, which gives you a little bit of margin for the fact that there may be differentials in in turnout. ... They're not against racial targets.&quot;</p><p>Coneservative Justice Samuel Alito seemed sympathetic to the states, saying that they were being held to a &quot;vague&quot; legal standard that suggested some use of race was necessary but not too much.</p><p>&quot;Maybe there's no way around this; but this is all...as you lay it out, very, very complicated,&quot; Alito said. &quot;Isn't this just an invitation for litigation in every one of these instances?&quot;</p><p>While the court seemed to be leaning toward rejecting at least part of the judge's opinion in the Virginia case, the outcome of the North Carolina case appeared murkier.</p><p>For one thing, the panel of three federal judges who rejected the North Carolina districts ruled after state courts had already upheld those districts against similar claims. That led to questions of whether the federal case should have gone forward at all.</p><br><p>One of the high court's most liberal justices, Ruth Bader Ginsburg, asked about that issue, as did Republican appointees Kennedy and Chief Justice John Roberts.</p><p>&quot;What's sustained is a matter of just luck of the draw?&quot; Kennedy asked incredulously after Elias said the federal case deserved to be taken up without much regard to the state case. </p><p>But Elias noted that Congress created the expedited appeal procedure which got the federal case to the high court without passing through the appeals courts.</p><p>&quot;Whether that was good policy on the part of Congress or bad policy on the part of Congress, it was a policy decision on the part of Congress,&quot; he noted.</p><p>If the high court reaches the merits of the North Carolina case, a key question appears to be whether challengers to a state's claim that a district was drawn for political reasons rather than racial ones need to show the existence of an alternative map that would meet the state's asserted political goals without the same kind of racial impact.</p><p>Alito appeared to indicate he favored such a requirement.</p><p>&quot;If a legislature says, this was done based on politics, and there's no way we could have achieved our political objective without doing this, they can't prove a negative. So it makes sense to turn to the other side and say, 'Prove that that's wrong,'&quot; Alito said.</p><p>But Elias and a lawyer representing the Obama administration disagreed, arguing that if challengers can show the district was drawn on a racial basis, they have a valid claim.</p><p>Clement argued that such an alternative map was required by the Supreme Court's decision in a 2001 case authored by Breyer. But Breyer himself seemed to raise doubts about that.</p> <p>&quot;I'm not so sure,&quot; Breyer said.</p><p>Justice Sonia Sotomayor is normally vocal in such cases, but she appeared to be suffering from a cold and laryngitis Monday, and took a lower profile role.</p><br>Mon, 05 Dec 2016 20:16:44 GMTjgerstein@politico.com (Josh Gerstein)http://www.politico.com/blogs/under-the-radar/2016/12/supreme-court-redistricting-virginia-north-carolina-232206Federal judge orders recount of presidential vote in Michiganhttp://www.politico.com/blogs/under-the-radar/2016/12/michigan-recount-ordered-judge-232182
&quot;The fundamental right invoked by Plaintiffs — the right to vote, and to have that vote conducted fairly and counted accurately — is the bedrock of our Nation,&quot; the judge wrote.<p>A federal judge acting on a suit brought by Green Party presidential nominee Jill Stein has ordered Michigan officials to begin a recount of the votes in that state in last month's presidential election.</p><p>U.S. District Court Judge Mark Goldsmith issued the <a href="http://www.politico.com/f/?id=00000158-cd95-dd08-a57c-dffd68600001" target="_blank">order</a> Monday morning, just after midnight, insisting that the recount begin by noon Monday.</p><p>Stein had followed procedures to demand a recount, but an objection by president-elect Donald Trump triggered a provision in state law that would have delayed the beginning of the recount until Tuesday or Wednesday, possibly jeopardizing its completion by the December end of a critical window for states to transmit the names of electors to the federal government.</p><p>&quot;Plaintiffs here have shown a credible threat that the recount, if delayed, would not be completed by the 'safe harbor' day,&quot; wrote Goldsmith, a Detroit-based judge appointed by President Barack Obama. &quot;The fundamental right invoked by Plaintiffs — the right to vote, and to have that vote conducted fairly and counted accurately — is the bedrock of our Nation. Without elections that are conducted fairly – and perceived to be fairly conducted – public confidence in our political institutions will swiftly erode.&quot;</p><p>Michigan officials argued at an unusual, three-hour Sunday hearing on the case that starting the recount immediately would be costly and that federal courts should generally refrain from tinkering with state's election procedures. However, Goldsmith said those concerns had to yield to others, given the urgency of the current situation and the importance of getting an accurate count of the vote.</p><p>Litigation related to the recount is also pending in a Michigan appeals court with a petition filed to take the issue to the Michigan Supreme Court. It's unclear how Goldsmith's order will affect those cases.</p><p>Official results from Michigan's first ballot count gave Trump a 10,704-vote margin over Hillary Clinton out of a total of nearly 5 million ballots cast in the state. Stein is in fourth place in the state, with 51, 463 votes, or about 1 percent of the total. She is also pursuing recounts in Pennsylvania and Wisconsin.</p><br>Mon, 05 Dec 2016 11:10:34 GMTjgerstein@politico.com (Josh Gerstein)http://www.politico.com/blogs/under-the-radar/2016/12/michigan-recount-ordered-judge-232182New stash of legal opinions detail hurdles for Trump on emoluments banhttp://www.politico.com/blogs/under-the-radar/2016/11/a-foreign-emoluments-clause-library-232027
There are decades of somewhat related opinions dating back to the 1940s.<p>Could wedding gifts sent to President Richard Nixon's daughters and an offer of Irish citizenship extended to President John F. Kennedy provide the legal guideposts for President Donald Trump's efforts to resolve conflicts of interests stemming from his business dealings in and with foreign countries?</p><p>A set of legal opinions POLITICO obtained from the Justice Department in 2012 and is publishing in full below lays out the official legal interpretations the federal government has issued over the years for the obscure constitutional provision now complicating Trump's transition to the Oval Office: the Foreign Emoluments Clause.</p><p>None of the Office of Legal Counsel opinions dated from the 1940s to the 2000s directly address how to unravel the foreign entanglements of a complex and large business empire like Trump's. </p><p>&quot;They consider questions like whether the Italian Government could pay for a trip to Italy for the Commissioner of the Immigration and Naturalization Services or whether a NASA scientist could accept a consulting fee of $150 from an Australian university or whether a Department of Justice employee could receive an annuity from a German state,&quot; Boston University law professor Jay Wexler said. &quot;Nothing in any of these opinions is remotely similar to the question of whether a billionaire with assets in every corner of the globe can serve as President of the United States.&quot;</p><p>But the opinions do provide the Justice Department's view that the foreign emoluments ban is intended to be &quot;sweeping&quot; in its scope and has traditionally been &quot;strictly construed,&quot; standards which could complicate Trump's situation, Wexler said.</p><p>The memos also opine on some threshold questions like whether the ban on foreign-government-supported gifts applies to the president.</p><p>Notwithstanding <a href="http://www.nytimes.com/roomfordebate/2016/11/17/would-trumps-foreign-business-ties-be-constitutional/constitutional-restrictions-on-foreign-gifts-dont-apply-to-presidents" target="_blank">suggestions</a> that the prohibition doesn't include the nation's chief executive, OLC declared in 2009 that it &quot;surely&quot; does. That conclusion came in <a href="https://www.justice.gov/sites/default/files/olc/opinions/2009/12/31/emoluments-nobel-peace.pdf" target="_blank">an opinion</a> blessing President Barack Obama's receipt of the Nobel Peace Prize, although the approval of his accepting that prize turned on the decision that the Nobel Committee isn't a government body.</p><p>A 1974 opinion about President Richard Nixon's receipt of $2,500 in anonymous donations intended to pay his income taxes also seems to assume the foreign-gifts provision applies to the president, although there's no indication that the money came from overseas.</p><p>Many of the opinions don't directly address the foreign emoluments clause but laws Congress has passed to regulate the receipt of foreign gifts by U.S. officials. The most colorful of these in recent decades may be a 1978 opinion about who should get wedding gifts Nixon daughters Julie and Tricia Nixon received from foreign governments in connection with their marriages. Julie was married in New York in 1968, while Nixon was president-elect. Tricia was married in 1971 in a White House ceremony.</p><p>Sadly, the opinion doesn't list the gifts, but says Julie got three and Tricia received &quot;numerous&quot; presents from foreign governments. Julie's gifts were deemed her property since she wasn't part of her father's household when the gifts came in. Tricia was considered part of President Nixon's household in the years leading up to her wedding, so the gifts she got before she moved out were also deemed government property. (It's unclear why the ownership of the gifts wasn't sorted out for nearly a decade.)</p><p>The opinions are also relatively bereft of actual legal precedents drawn from court cases. It seems that over the years, Justice Department lawyers have generally had the last word in such disputes. So, while Trump and his aides might abide by them, new officials can issue new opinions overruling the old ones.</p><p>&quot;If the Justice Department has a long history of interpreting a constitutional provision in some clear way, then the presumption is that it will continue to follow that precedent in new situations,&quot; Wexler said. &quot;On the other hand, though, the precedential effect of Justice Department memoranda is not nearly as strong or fixed as judicial precedent. A new administration may come along and interpret a constitutional provision differently than its predecessors.&quot;</p><p>Prompted by the Nobel award to Obama in 2009 , POLITICO requested the foreign emoluments opinions from the Justice Department under the Freedom of Information Act in 2009, seeking all previously unreleased issuances on the subject. Getting a response took more than two years, producing 24 opinions or memos. Some of the opinions have been published before or since.</p><p>OLC decides for itself which opinions to release and which to withhold, with courts providing little second-guessing of such decisions. A case about OLC's duty to disclose its opinions is <a href="https://www.lawfareblog.com/oral-argument-preview-crew-v-doj" target="_blank">set to be heard</a> by the D.C. Circuit next week. </p><p>Here are the set of legal memos released to POLITICO:</p><p><a href="http://www.politico.com/f/?id=00000158-b7ee-d53b-a37f-bfee7b6d0001" target="_blank">President Obama's receipt of the Nobel Peace Prize, Dec. 7, 2009</a></p><p><a href="http://www.politico.com/f/?id=00000158-b52c-d679-a75f-bfbdfd4f0001" target="_blank">AG Gifts and Awards, Nov. 4, 1988</a></p><p><a href="http://www.politico.com/f/?id=00000158-b52d-db1e-a1f9-ff7ff02e0002" target="_blank">AG Gifts and Awards, Mar. 13, 1986</a></p><p><a href="http://www.politico.com/f/?id=00000158-b52e-d6a1-a5d9-b5eeda810000" target="_blank">Travel Reimbursement, Mar. 2, 1988</a></p><p><a href="http://www.politico.com/f/?id=00000158-b52f-d012-ab5a-b5af63ee0001" target="_blank">Atomic Energy Commission and India, Sept. 29, 1969</a></p><p><a href="http://www.politico.com/f/?id=00000158-b52f-db1e-a1f9-ff7ff1e50001" target="_blank">Iranian to serve on National Voluntary Service Advisory Council, May 10, 1974</a></p><p><a href="http://www.politico.com/f/?id=00000158-b530-db1e-a1f9-ff7e9aea0001" target="_blank">CFTC chairman's foreign travel paid for by Indonesia, Aug. 11, 1980</a></p><p><a href="http://www.politico.com/f/?id=00000158-b542-d6a1-a5d9-b5e6106d0000" target="_blank">Chinese government reimbursement of U.S. delegation's expenses, April 11, 1977</a></p><p><a href="http://www.politico.com/f/?id=00000158-b542-d012-ab5a-b5e3944e0001" target="_blank">Civilian aide to Army seeking to serve as Luxembourg honorary consul, August 29, 1988</a></p><p><a href="http://www.politico.com/f/?id=00000158-b543-d6a1-a5d9-b5e71fab0001" target="_blank">Dual service of Ralph Bunche at United Nations and on U.S. Civil Rights Commission, Oct. 15, 1957</a></p><p><a href="http://www.politico.com/f/?id=00000158-b543-d012-ab5a-b5e399570001" target="_blank">Anonymous donations to pay Nixon's taxes, April 26, 1974</a></p><p><a href="http://www.politico.com/f/?id=00000158-b544-d012-ab5a-b5e50a460001" target="_blank">Saudi king's grandson's gifts to U.S. officials, Sept. 23, 1952</a></p><p><a href="http://www.politico.com/f/?id=00000158-b544-db1e-a1f9-ff7e871c0000" target="_blank">Nixon daughters' wedding gifts, Feb. 8, 1978</a></p><p><a href="http://www.politico.com/f/?id=00000158-b544-d679-a75f-bff5f2fe0001" target="_blank">Historical survey of foreign gifts, Feb. 18, 1958</a></p><p><a href="http://www.politico.com/f/?id=00000158-b545-d679-a75f-bff564040000" target="_blank">Disposition of late FBI Director J. Edgar Hoover's possessions, Nov. 15, 1976</a></p><p><a href="http://www.politico.com/f/?id=00000158-b545-d6a1-a5d9-b5e5f1ea0002" target="_blank">Judge's membership on United Nations International Law Commission, Nov. 27, 1953</a></p><p><a href="http://www.politico.com/f/?id=00000158-b546-db1e-a1f9-ff7e68c40001" target="_blank">Italy-funded junket for White House and immigration official, Oct. 16, 1962</a></p><p><a href="http://www.politico.com/f/?id=00000158-b546-d679-a75f-bff7e5e10000" target="_blank">Honorary Irish citizenship for President Kennedy, May 10, 1963</a></p><p><a href="http://www.politico.com/f/?id=00000158-b547-db1e-a1f9-ff7f60920001" target="_blank">Payment of NASA scientist by Australian university, May 23, 1986</a> (issued by future Supreme Court Justice Samuel Alito)</p><p><a href="http://www.politico.com/f/?id=00000158-b547-d012-ab5a-b5e7cc590001" target="_blank">Navy scientist's receipt of monetary award from German foundation, Mar. 17, 1983</a></p><p><a href="http://www.politico.com/f/?id=00000158-b555-d6a1-a5d9-b5f53dbe0001" target="_blank">Annuity from German government for former German judge fired by Nazi's and later employed as U.S. Government attorney, Oct. 4, 1954</a></p><p><a href="http://www.politico.com/f/?id=00000158-b557-db1e-a1f9-ff7f07650001" target="_blank">Transportation for spouses of cabinet members, Apr. 4, 1990</a></p><p><a href="http://www.politico.com/f/?id=00000158-b557-d6a1-a5d9-b5f76d570001" target="_blank">Payment of Weather Bureau employees by the Government of Ireland (Eire), Apr. 17, 1947</a></p><p>Selected other emoluments opinions not part of the above release, but available online:</p><p><a href="https://www.justice.gov/sites/default/files/olc/opinions/1994/03/31/op-olc-v018-p0013.pdf" target="_blank">Payment of NASA scientists by Canadian university, Mar. 1, 1994</a></p><p><a href="https://www.justice.gov/sites/default/files/olc/opinions/2010/06/31/acus-emoluments-clause_0.pdf" target="_blank">Application of emoluments clause to members of Administrative Conference of the United States, June 3, 2010</a></p><p><a href="https://www.justice.gov/sites/default/files/olc/opinions/1993/10/31/op-olc-v017-p0114.pdf" target="_blank">Application of emoluments clause to members of Administrative Conference of the United States, October 28, 1993</a><br /></p><br>Thu, 01 Dec 2016 18:37:03 GMTjgerstein@politico.com (Josh Gerstein)http://www.politico.com/blogs/under-the-radar/2016/11/a-foreign-emoluments-clause-library-232027Obama administration argues before Supreme Court to limit immigrants' rightshttp://www.politico.com/blogs/under-the-radar/2016/11/immigration-supreme-court-obama-administration-hearings-231996
The acting solicitor general argued that the 9th Circuit Court of Appeals distorted immigration statutes when it ruled last year that many immigrants in prolonged detention are entitled to hearings before immigration judges every six months.<p>After enduring years of withering criticism from Republicans for allegedly defying and twisting the law to go easy on immigrants, the Obama administration was at the Supreme Court on Wednesday urging the justices to strike down a court decision granting regular hearings to many migrants jailed on immigration grounds.</p> <p> The Obama Justice Department's law-and-order stance in the case took on added real-world significance with Donald Trump's victory in the presidential election earlier this month. Trump campaigned promising a broad crackdown on illegal immigration, something that could be even more onerous for foreigners if the federal government's position prevails.</p> <p> Acting Solicitor General Ian Gershengorn argued that the 9th Circuit Court of Appeals distorted immigration statutes when it ruled last year that many immigrants in prolonged detention are entitled to hearings before immigration judges every six months.</p> <p> &quot;The 9th Circuit undid that legislative balance,&quot; Gershengorn complained, repeatedly asserting that the appeals court essentially invented a &quot;one-size-fits-all&quot; policy guaranteeing bail hearings that lawmakers never authorized. &quot;This was a deliberate, categorical judgment by Congress.&quot;</p> <p> The case seemed to split the shorthanded high court along its usual ideological lines, raising the possibility that the eight current justices might hold a decision until they get a ninth colleague nominated by Trump and confirmed by the Senate, perhaps next spring. However, there are several different groups of immigrants at issue in the case and there appeared to be more agreement among the justices about how to treat certain groups, such as criminals.</p> <p> Another possibility would be to reject the 9th Circuit's ruling, but dodge the broader constitutional question of whether all immigrants in extended detention have a right to bond hearings and at what point.</p> <p> When Gershengorn said the vast majority of immigrants get resolution of their cases by an immigration judge within 14 months and any appeal within 19 months, Justice Sonia Sotomayor seemed to think that was too long for people to sit in jail without a possibility of bail.</p> <p> &quot;We are in an upended world when we think 14 months or 19 months is a reasonable time to detain&quot; someone, Sotomayor said.</p> <p> Justice Stephen Breyer seemed to agree, noting that some immigrants who serve time on criminal charges could find their stay behind bars extended. “You get out of jail … but you’ve got four more years of punishment?” he asked.</p> <p> In its ruling last year, the 9th Circuit panel said it was reading the law to permit such hearings because reading it to prohibit them would raise constitutional issues about detaining people indefinitely without due process.</p> <p> That approach led to sparring between Chief Justice John Roberts and Justice Elena Kagan, after he suggested that perhaps the case should be returned to the 9th Circuit to have them address the constitutional issue directly.</p> <p> Kagan said it was fairly obvious that the appeals court panel thought the Constitution prohibited detaining foreigners indefinitely without a hearing.</p> <p> “Maybe they should have had the courage of their convictions,” Roberts replied tartly. “If they [thought] it was unconstitutional they should have said so rather than stretch the principle of constitutional avoidance to the lengths that they did.” </p> <p> While Roberts has <a href="https://www.supremecourt.gov/opinions/13pdf/12-158_6579.pdf" target="_blank">sometimes endorsed</a> unusual readings of the law in order to avoid thorny questions, he suggested Wednesday that the justices shouldn't be in the business of redrafting laws.</p> <p> &quot;We can't just write a different statute because we think it's more administrable,&quot; he said.</p> <p> Justice Samuel Alito seemed to agree, calling it “a pretty tough argument” to read the law’s provisions to allow for bond hearings. </p> <p> The Obama administration argued that immigrants stuck in prolonged detention do have a way to contest it: go to a federal court and file a habeas corpus petition.</p> <p> But the American Civil Liberties Union’s Ahilan Arulanantham, who argued for the detained immigrants, said that wasn’t a practical solution. </p> <p> “This is a class of mostly unrepresented people … Most of them cannot file a habeas petition,” he said. The ACLU attorney also noted that the Supreme Court doesn’t make criminal defendants seeking release on state or local charges go to federal court for a habeas ruling, a process that usually takes months to resolve.</p><p> The Supreme Court ruled in 2001 that immigrants with final orders of deportation generally could not be held for more than six months in jail, unless their deportation is imminent. However, the court was not explicit about whether that rule applied to immigrants in protracted proceedings before immigration courts.</p><br>Wed, 30 Nov 2016 18:14:21 GMTjgerstein@politico.com (Josh Gerstein)http://www.politico.com/blogs/under-the-radar/2016/11/immigration-supreme-court-obama-administration-hearings-231996Feinstein still pressing Obama to declassify 'torture report'http://www.politico.com/blogs/under-the-radar/2016/11/feinstein-cia-torture-report-231978
At issue is a Senate report about the use of harsh interrogation techniques by the CIA under President George W. Bush.<p>Sen. Dianne Feinstein is making a determined but last-ditch attempt to get President Barack Obama to declassify a nearly-7,000-page Senate report about the use of harsh interrogation techniques by the CIA under President George W. Bush.</p><p>Feinstein sent Obama a letter last week urging him to make the unabridged version of the Senate Intelligence Committee's so-called &quot;torture report&quot; public in a declassified form before he leaves office Jan. 20. She said Tuesday that she also buttonholed Vice President Joe Biden this week to make sure Obama got the message.</p><p>&quot;Last night, I handed a letter to Joe Biden to give to the president, so — be sure he got my original letter. You never know,&quot; the California Democrat said, according to her office. &quot;So, the time has come. The issue has been raised; it’s been raised by the president-elect. It’s time to address it. Let’s look at the facts. The time has come to declassify the report, allow the general public to make up its own mind. At least, those that’ll read 7,000 pages.”</p><p>Another Democrat on the intelligence committee, Sen. Ron Wyden of Oregon, is making <a href="http://www.wweek.com/news/2016/11/23/u-s-sen-ron-wyden-asks-president-obama-to-declassify-torture-report-before-donald-trump-takes-office/" target="_blank">a similar request</a>. He notes that President-elect Donald Trump has repeatedly called for a return to waterboarding, although he seemed to back away from that stance during an interview with the New York Times last week.</p><p>In December 2014, the Obama administration declassified the bulk of the 525-page executive summary of the Senate report, which blasted the CIA's war-on-terror interrogation practices. Activists and journalists have continued to press for disclosure of the longer, full report, including through Freedom of Information lawsuits demanding its release. However, the suits failed, after the courts ruled that the report remains a Senate record and is not an executive branch document. (A Supreme Court petition is pending in one of the cases.)</p><br><p>Obama's short time remaining in office makes declassification of the full report seem like a long shot. Declassification of the summary took more than a year and led to protracted bureaucratic wrangling. A more practical option might be for Obama to instruct officials at various agencies to examine the full report and integrate it into their files. That might make it impossible to resist FOIA requests for the report, although agencies and incoming President Donald Trump would still have the ability to edit it heavily through the declassification process.</p><p>A coalition of 30 advocacy groups sent Obama <a href="https://s3.amazonaws.com/demandprogress/letters/2016-11-21_Obama_Surveillance_Asks.pdf" target="_blank">a letter</a> last week asking him to get the National Archives to decide whether the the report is an executive branch record and to declassify at least the table of contents of the report.</p><p>White House spokesman Ned Price declined to comment on the calls to declassified the broader report or to deem it a federal record. However, he stressed Obama's role in banning torture and in exposing past practices.</p><p>&quot;The President supported the declassification of the Summary, Findings, and Conclusions of the Senate's report on detention and interrogation, with appropriate redactions for national security, in part to ensure certain practices were never employed again. We also have made clear that U.S. law prohibits torture without exception, and that all U.S. personnel are prohibited from engaging in torture at all times and in all places,&quot; Price said. </p><p>&quot;To be sure, we have owned up to past mistakes and helped to right wrongs-both at home and abroad. As the President said in 2014, 'No nation is perfect. But one of the strengths that makes America exceptional is our willingness to openly confront our past, face our imperfections, make changes and do better.' That is precisely what we have done and will continue to do.&quot;</p><br>Wed, 30 Nov 2016 04:18:17 GMTjgerstein@politico.com (Josh Gerstein)http://www.politico.com/blogs/under-the-radar/2016/11/feinstein-cia-torture-report-231978FBI to send Huma Abedin emails to Statehttp://www.politico.com/blogs/under-the-radar/2016/11/huma-abedin-clinton-emails-fbi-231931
&quot;Today the Department of Justice informed the court that the FBI will be providing the State Department with additional emails,&quot; State spokesman John Kirby said.<p>The FBI plans to send more Hillary Clinton-related emails to the State Department to be processed for public release, a government lawyer said Tuesday.</p><p>The messages appear to be from a set recovered during a search of a laptop belonging to Anthony Weiner, the estranged husband of Clinton aide Huma Abedin. The planned handover was confirmed by Justice Department attorney Lisa Ann Olson at a brief court hearing in a Freedom of Information Act lawsuit, but no timetable for State to receive the messages or make them public was discussed.</p><p>&quot;Today the Department of Justice informed the court that the FBI will be providing the State Department with additional emails,&quot; State spokesman John Kirby said in a statement. &quot;It has not been assessed how many of these emails are State Department work-related records rather than personal emails, nor do we know how many are duplicates or near duplicates of materials previously provided to the State Department by former Secretary Clinton.&quot;</p><p>&quot;When we have the records in our possession, we will identify any work-related records for release through FOIA as may be appropriate,&quot; Kirby added. </p><p>The FBI provided tens of thousands or more emails to State soon after closing the criminal investigation into Clinton's use of a private email server while secretary of state. Many of the messages, recovered by the FBI during the probe, are duplicates of others previously processed by State, but some are new. State disclosed over 2,000 pages of those messages shortly before the election and is under a court order to make additional disclosures each month.</p><p>Shortly before the election, the FBI found new messages to and from Abedin, while examining Weiner's laptop as part of an unrelated investigation. FBI Director James Comey disclosed that discovery to Congress, generating renewed press and public attention to Clinton's email controversy — attention many Democrats blame for Clinton's loss in the presidential race earlier this month. Comey told Congress on the Sunday before the election that the new emails didn't change the FBI's conclusion that Clinton should not be prosecuted.</p><p>Several pending FOIA suits seek some or all of the records State is expected to receive from the FBI. Tuesday's hearing was on a case brought by the conservative group Judicial Watch.</p><p>Judicial Watch lawyer Chris Fedeli asked U.S. District Court Judge James Boasberg to order State to check in with the FBI regularly to determine when the additional emails might arrive, but Boasberg said he didn't appear to have that authority since the FBI is not party to the case.</p><p>&quot;The difficulty is the posture of the case. The suit is against the State Department for documents in its possession,&quot; Boasberg said. &quot;I'm not sure if it doesn't have them that it has any obligation to harry the FBI for their return.&quot;</p><p>Boasberg ultimately entered an order requiring State to file a notice with the court within one week of receiving any additional records from the FBI.</p><br>Tue, 29 Nov 2016 17:42:15 GMTjgerstein@politico.com (Josh Gerstein)http://www.politico.com/blogs/under-the-radar/2016/11/huma-abedin-clinton-emails-fbi-231931